CM v XH

• Jurisdiction: New Zealand
• Judgment Date: 05 July 2011
• Neutral Citation: [2011] NZLCRO 31
• Date: 05 July 2011
• Docket Number: LCRO 97/2010
• Court: Legal Complaints Review Officer

BETWEEN

Concerning

An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

And

Concerning

a determination of the Auckland Standards Committee 4

CM of Auckland

Applicant

and

XH of Auckland

Respondent

[2011] NZLCRO 31

LCRO 97/2010

Applicant for review of a Standards Committee decision to take no further action against a lawyer who sent an email to the applicant's work, advising the applicant that his partner wished to separate and that the practitioner had failed in his duty to promote reconciliation or conciliation under s8 Family Proceedings Act 1980- whether the lawyer's actions amounted to unprofessional conduct by virtue of having sent the letter to the applicant's workemailaddress, which could be accessed by unauthorised individuals; and whether the lawyer had failed in his duty to promote reconciliation or conciliation.

Counsel:

Mr CM as the Applicant

Mr XH as the Respondent

The Auckland Standards Committee 4

The New Zealand Law Society

DECISION

1 Complaints were made by Mr CM (the Applicant) against Mr XH (the Practitioner) who acted for his de facto partner in relation to a separation which involved relationship property and child custody issues. None of the complaints were upheld, the Standards Committee having concluded, pursuant to Section 138(2) of the Lawyers and Conveyancers 2006 to take no further action. This section confers on a Standards Committee a discretionary power to take no further action on a complaint if, in the course of the investigation, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

2 The Applicant exercised his right to have that decision reviewed. There were a number of reasons why he sought the review, one of the principal reasons being that the Standards Committee had not, in his view, provided reasons for declining to uphold his complaint. From my early assessment of the file, I agreed that the Standards Committee decision was not explained by any clear statement of reasons and the Standards Committee was requested, pursuant to Section 204(a)(ii) of the Lawyers and Conveyancers Act to provide reasons for its decision.

3 It is appropriate to remind Standards Committees of their obligation to provide reasons for all of its decisions made pursuant to Section 138. This is a statutory obligation imposed by Section 139(2) of the Act.

4 The Standards Committee provided a statement of reasons shortly thereafter and this was provided to both parties who were invited to respond and provide any further information as they wished to forward. The Applicant raised a query about whether his review application to this Office had been sent to the Standards Committee. I am able to confirm that this was not done and should he wish to receive a copy of the letter to the Standards Committee, it will be made available to him on request.

5 This review has been conducted “on the papers” that being on the basis of the materials on the Standards Committee file, which was provided to my Office, and all the information provided by the parties in relation to this review. Section 206 of the Lawyers and Conveyancers Act provides for a review on the papers if the parties consent, and if it appears to the LCRO that the review can be adequately determined in their absence and in the absence of representatives and witnesses. The parties consented to a review on the papers.

Standards Committee Procedures

6 In addition to raising concerns about the absence of reasons, the Applicant also had raised with the Standards Committee his expectation that he would have been given an opportunity to provide submissions to the Standards Committee for its consideration. He referred to the Standards Committee's letter to him of 22 December 2009 wherein the following paragraph was included.

All information submitted to the Standards Committee should be in writing and in a form that can be copied to the lawyer concerned. This is because theLawyers and Conveyancers Act 2006 provides for Standards Committees to conduct their hearings on the papers once the investigation is completed. At that stage your written submissions will be invited.

7 The Applicant had apparently assumed from the above that there would be a hearing and said that he had every intention of making some written submissions and had been denied the opportunity to do so before the Standards Committee considered the evidence. He had raised this concern with the Standards Committee and received a response the next day with a better explanation of the Standards Committees procedures. In particular, the Applicant was informed that the Committee had not set the matter down for a “hearing on the papers”, having resolved to take no further action.

8 It is not hard to see how the Applicant may have been confused by the information he had received. It is not altogether clear from the Committee's letter to him that a Standards Committee investigation involves a preliminary assessment, and that a hearing on the papers will be done (and submissions sought) only if the Standards Committee considers that further investigation should be undertaken. If the Committee decided that no further action is necessary or appropriate, it would then issue a decision to dismiss the complaint pursuant to Section 138.

9 In any event, there is nothing to indicate that the Standards Committee was not in full possession of all the information in relation to the complaints. However, the Applicant has had the opportunity, as part of the review process, to forward any additional information that he considered relevant to the matter.

Background

10 The Practitioner acted for the Applicant's former de facto partner, R, in separation and relationship property matters in early 2008. The Applicant had his own lawyer. Aside from the initial correspondence with the Applicant, all communications were conducted between the lawyers. There were children of the relationship and also property matters to be dealt with. All matters were eventually settled, making it unnecessary for any proceeding to be filed.

Substantive complaints

11 There were two principal complaints made by the Applicant. The first concerned an email sent by the Practitioner to the Applicant, informing him of R's wish to separate and other related matters. This email was sent to the Applicant's email address at his work. The Applicant complained that the Practitioner ought to have sent it to his lawyer. He further alleged that the Practitioner had failed to protect his privacy

12 The second complaint alleged that the Practitioner had failed in his duty to promote reconciliation or conciliation. Much of his information was devoted to describing the consequences of what he perceived as resulting from the Practitioner's failure in this regard.

Applicable standards

13 The conduct that the Applicant complained of relates primarily to the Practitioner's actions during the period 22 February to 19 May 2008. This is the time-frame in which the Applicant and R separated, she having consulted the Practitioner and when preliminary steps were taken, leading to the settlement.

14 The conduct pre-dated the commencement of the Lawyers and Conveyancers Act, which had a commencement date of 1 August 2008. Section 351 of the Lawyers and Conveyancers Act deals with complaints made after the commencement of this Act, about conduct that occurred prior to its commencement. By virtue of section 351, a Standards Committee has jurisdiction to consider such complaints only if the conduct complained of could have led to disciplinary action against the Practitioner under the Law Practitioners Act 1982.

15 The applicable standards are those found in the Law Practitioners Act and the Rules of Professional Conduct for Barristers and Solicitors, both of which have since been replaced. The pre 1 August 2008 standards are found in ss 106 and 112 of the Law Practitioners Act. The threshold for disciplinary intervention under the Law Practitioners Act was relatively high and may include findings of misconduct or conduct unbecoming. Misconduct was generally considered to be conduct:

of sufficient gravity to be termed “reprehensible” (or “inexcusable”, “disgraceful” or “deplorable” or “dishonourable”) or if the default can be said to arise from negligence such negligence must be either reprehensible or be of such a degree or so frequent as to reflect on his fitness to practise.

( Atkinson v Auckland District Law Society NZLPDT, 15 August 1990; Complaints Committee No 1 of the Auckland District Law Society v C [2008] 3 NZLR 105). Conduct unbecoming could relate to conduct both in the capacity as a lawyer, and also as a private citizen. The test will be whether the conduct is acceptable according to the standards of “ competent, ethical, and responsible practitioners ” ( B v Medical Council [2005] 3 NZLR 810 per Elias J at p 811). For negligence to amount to a professional breach the standard found in s 106 and 112 of the Law Practitioners Act 1982 must be breached. That standard is that

…the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor oras to tend to bring the profession into disrepute.

16 I note that the above standards had a higher threshold than those now applicable under the Lawyers and Conveyancers Act and its Rules of Conduct and Client Care. In its statement of reasons, the Standards Committee had noted the threshold that applied to the complaints, being of the view that no part of the Practitioner's conduct reached the threshold that could have led to disciplinary action against the Practitioner.

17 The Applicant disagreed as he considered the Practitioner's conduct was of...